Aspen moratorium debate goes to judge for ruling

Workers bring out pails of snow from a residential construction site on East Cooper Avenue in downtown Aspen on Jan. 12. (Kelsey Brunner/The Aspen Times)

Judge Anne Norrdin will have some reading to do this week before she decides on whether Aspen violated the Colorado Open Meetings Law when the City Council approved a temporary ban on residential development and new licenses for vacation rentals.

Both plaintiff Aspen Board of Realtors and the defendant city government filed their closing arguments Friday in Pitkin County District Court, which is where the moratorium is being challenged through both a motion for preliminary injunction and a lawsuit.

While the lawsuit is pending before the court, Norrdin said at the conclusion of a two-day hearing Feb. 25 that she would aim to make a ruling on the preliminary-injunction motion by the end of this week.

If successful, the Aspen Board of Realtors will have accomplished one of its legal missions to temporarily pause the city’s temporary pause, one attorney Chris Bryan has alleged was secretly channeled through city staff and officeholders via an ordinance the public didn’t know about until the evening of Dec. 8. Bryan also has argued the ordinance was fast-tracked through disingenuous, emergency-styled legislation based on the impacts of climate change. Those actions constituted violations of the Open Meetings Law and due process, Bryan has alleged.

“The question must be asked: if an emergency truly existed, why keep it secret? ABOR contends there was no such ’emergency’ and that the City acted in bad faith in invoking an emergency on pretextual grounds,” Bryan’s written closing argument said.

City attorneys have contended ABOR’s allegations aren’t supported with evidence and it is not the court’s place to decide on the merits of the City Council-declared emergency.

“The Court cannot disregard the City’s finding of an emergency and make its own conclusion where as here the Plaintiff’s case failed to adduce evidence of bad faith or fraud in the City Council’s determination of an emergency,” wrote City Assistant Attorney Katharine Johnson in the city’s closing argument.

Norrdin’s decision comes down to whether the moratorium will remain in effect until its June 8 expiration for residential development and Sept. 30 for new short-term rental license applications.

The two moratoriums took effect instantly after the City Council gave final unanimous approval of emergency Ordinance 27 on Dec. 8. The council approved the ordinance on first reading Dec. 7. A non-emergency ordinance would have required at least two weeks between the first and second reading. As well, a non-emergency ordinance would not have taken effect until 30 days after its passage.

The Board of Realtors has alleged the city knew about the ordinance well before it was hand delivered to people at the Dec. 7 City Council meeting. An agenda posted the Friday before the council meeting did not mention Ordinance 27; Bryan has argued the city ignored both the state’s and its own rules that regarding public notices.

“It is undisputed that reference to Ordinance 27 was not posted on the publicly available agenda at least 24 hours before first reading occurred on December 7, 2021,” Bryan wrote in ABOR’s closing argument. “Instead, Ordinance 27 —and the moratorium it enacted — were made public for the first time after the December 7th meeting began, when, mid-meeting, Council amended the agenda to include it.”

The city has countered that if Ordinance 27 was such a secret, “The fact that Plaintiff’s members were present at one or both of the Council meetings where the Ordinance was considered and were given the opportunity to and did address Council regarding the ordinance at the second reading clearly dispels any claims the City acted in secret, or otherwise failed to comply with the letter or spirit of the Open Meetings Law in adopting Ordinance #27,” Johnson wrote in closing arguments.

As well, City Attorney Jim True argued during the Feb. 24-25 hearing that while a 24-hour notice for a public-body meeting is required, there was no legal requirement to notice Ordinance 27. He cited the Colorado Open Meetings Law as it applies to noticing governmental body meetings, which states: “The posting shall include specific agenda information where possible.”

Johnson reiterated that in closing arguments: “(Aspen Board of Realtors) throughout this case has consistently ignored this qualifying and key language in the statute. This language cannot be ignored simply because it is inconvenient to a party’s legal position — it must be considered to give full effect to the Legislature’s command.”

City leaders have said the moratoriums are needed so they can revisit and revise the land-use code so that it addressees the impacts of residential development and short-term rentals, which are for periods of fewer than 30 days.

Ordinance 27 states that “a pause in certain types of residential development is necessary in order to assess the current state of the affordable housing program, assess gaps and opportunities in the regulations and delivery of units relative to need, and consider future community needs in the housing sector in the context of larger Land Use Code issues.” It continues that “anthropogenic climate change and the impacts to the ecological and economic health of the community constitutes an emergency and a threat to the health and safety of the residents of the City of Aspen and the global community,” and that residential development and STR contribute to the trend.

Bryan disagreed.

“This wasn’t an emergency; this was an ambush,” he wrote in closing arguments. “(The city’s) desire for Ordinance 27 to go into effect immediately to avoid a ‘rush’ of STR, development, and building permit applications does not an emergency make.”